[Sansad TV] Perspective: Legalizing Same-Sex Marriage

Context

  • The Supreme Court has issued notice to the Centre Govt on a plea by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act, 1954.
  • The petition drew on earlier landmark rulings including one declaring privacy a fundamental right and another that decriminalized gay sex in 2018.
  • Centre has to now file its response on this matter before the Supreme Court in four weeks.

What is Same-Sex Marriage?

sex
  • Same-sex marriage is marriage between partners of the same sex and/or gender identity.
  • For example, a marriage between two men or two women.
  • In the west, it is considered a civil partnership as a legally registered relationship which offers same sex couples rights similar to those of married couples of the opposite sex.

Judicial basis for same-sex marriage: Decriminalization of IPC section 377

Ans. Navtej Singh Johar & Ors. V. Union of India (2018)

  • In this landmark verdict, the Supreme Court today scrapped the controversial Section 377– a 158-year-old colonial law on consensual gay sex.
  • Section 377, which is part of an IPC 1861, banned “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.
  • The Supreme Court reversed its own decision and said Sectuion 377 is irrational and arbitrary.
  • The judgment was delivered by a Bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Centre’s earlier stance

  • Directly opposed: In 2021 central Government had opposed same sex marriage in Delhi High Court citing it against the provisions of the Special Marriage Act, 1954.
  • Considers biological gender: It stated that a marriage in India can be recognised only if it’s between a biological man and biological woman capable of producing progeny.
  • Societal morality clause: In its argument then Central govt had also said that considerations of “societal morality” are relevant in considering the validity of a law.
  • Claiming responsibility: It argued that, it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.

Reasons behind centre’s opposition

  • Legal revamp required: The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
  • Definition of spouse: In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.
  • Against cultural norms:  The social order in our Country is religion based which views procreation as an obligation for the execution of various religious ceremonies.
  • Property and other civil rights: Property rights post marriage is a much contested issues in India. Same sex marriage will not create any immunity for the law but increase complex interpretations.

Issues with such marriages

The issue of homosexual conduct to this fore in recent legal and political debate for main reasons, which are as follows:

  • Morality: This has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a greater extent disappeared.
  • Rising activism: Campaigns for lesbian and gay rights taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality.
  • Religious sanctions: Same sex acts are punishable by death in Arab countries. No religion openly embraces same sex marriage. More or less, they are considered un-natural everywhere.
  • Social stigma:  Apart from the harsh legal scenario, homosexuals face social stigma as well. Same sex marriages are still unimaginable as any instance of sexual relations between a couple of the same sex draws hatred and disgust.  
  • Patriarchy: It must not be forgotten that the Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way.
  • Burden of collectivity: Our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism.

Arguments in favor

  • Pursuit of happiness: Homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire.
  • Right to privacy: The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual.
  • Arbitrariness: Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced.
  • Issues with definition: Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural.
  • Discrimination: Section-377 discriminates on the basis of sexual orientation which is forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex.
  • Human rights: The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights.
  • Many countries recognizing: According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Way forward

  • Dissociating from religion: Such marriages are forbidden in almost every religion. Hence no single religion should be considered a hindrance in creating a legal sanction.
  • Doing away with discrimination: The same-sex community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity.   
  • Letting the society evolve: The society has to imbibe the doctrine of progressive realization of rights and it cannot be forcibly convinced by law.
  • Creating awareness: Certainly this is not an overnight phenomenon. We are society where practice of Sati and Nikah halala was considered a religious order.

Conclusion

  • What should be the right approach to deal with same sex marriages, the issues are quite vast and complex.
  • However, the desirability and feasibility of such an approach remain to be ascertained.

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